Ashley Madison Cheating…with Copyright Law?

September 15, 2015

Ashley Madison probably isn’t everyone’s favorite woman, but the website has been in the news recently. Hackers exposed the list and identifying information of users of the website—a website designed in part to help individuals find people for extramarital relations. In addition to the countless controversies over who used the site, including those who are suing the company, there is an interesting legal tactic being taken by the website. Ashley Madison is sending DMCA notices to various websites trying to protect the information.
The DMCA, or the Digital Millennium Copyright Act, was a piece of legislation created in 1998 that, among other things, helps shield websites from potentially infringing content that users post on the website. It was originally designed to help movie and music producers from having their copyright material uploaded online. It is the reason YouTube is so quick to remove potentially infringing content. If someone is subject to a DMCA takedown, then they can file a response. The website has 10 to 14 business days to put the material back online. If that happens, the person alleging copyright infringement can file a lawsuit. Sometimes the DMCA can be far from perfect though.
While this usually is used for music or video, it doesn’t have to be. Copyright protects a wide range of creative pieces from writing to art to photographs. An individual actually doesn’t have to register his or her work to make it copyrighted—copyright happens at the moment of creation. There is an advantage to registering a copyright; if someone is found to infringe it there can be an automatic statutory penalty of $150,000 per infraction. This is the reason we have all heard of bizarre stories of grandmothers being penalized millions of dollars for something their grandchildren downloaded.
The DMCA has been used very recently in a rather non-traditional manner. Following a massive celebrity nude picture leak caused by hackers last year, Jennifer Lawrence (among other actors) sent DMCA notices to Google to remove two links her lawyer said hosting pictures that violated her copyright. Google removed the links and tags to Jennifer Lawrence, though they did not have to, as the links in question apparently no longer contained the allegedly copyrighted material.

Does this mean Ashley Madison should feel good about the debatably creative legal strategy that they are taking? That depends on whom you ask.

The attorney for Ashley Madison’s parent company Avid Life Media says so. He says the company is “pleased” because what was most important to the company was the confidentiality of the customers’ information.
Not everyone sees it this way. Some think that Ashley Madison is actually abusing the powers of the DMCA in order to protect something it shouldn’t cover. In addition to saying the copyright law is being used wrongly, there is a good argument that using copyright law does nothing to actually prevent the hacking issues that underlie all of these cases. Some are even more critical of Ashley Madison’s tactics.
Time will tell who is right, but Ashley Madison might want to consider being careful with using the DMCA so broadly and quickly. One person who previously sent frequent DMCA notices actually was counter sued by an individual who accused them of abusing its power.
Facing lawsuits from former website users and other companies? That sounds like an affair that even Ashley Madison might want to avoid.